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Tort 9 Intentional injuries to the person
Tort 9 Intentional injuries to the person
Terms in this set (91)
trespass to the person. which has three forms
mostly criminal, but occasionally in tort. note that in tort standard is BOP, in criminal BRD
assault, battery and false imprisonment.
Each of these is an individual T in its own right requiring proof of a direct and deliberate act on the part of the D.
C does not need to have suffered any loss or damage as a result of the T.
On balance it would appear to be the case that any action taken for intentional and direct interference with a person would lie in trespass whereas an action for indirect interference with the person would lie in negligence. Note that so far as trespass is concerned, the fault requirement relates to the act and not the consequences. A D will be liable for any direct consequence of his act.
derives from the ancient writ of trespass, one of the requirements of which was that the D's act had to be direct, i.e. direct interference with the person or property of the C (plaintiff). 'direct' has, at times, been interpreted broadly by the courts.
Scott v Shepherd (1773)
court was prepared to extend the definition of direct injury to give Scott a remedy. The D had thrown a lighted squib (a firework) into a market place. It first landed on A's stall. B in order to prevent damage picked it up and threw it, and it landed on C's stall. C, again to prevent damage, picked it up and threw it where it struck Scott in the face and went off putting out one of his eyes.
DPP v K 
a boy had poured some concentrated sulphuric acid into a hand-dryer, intending to remove it later on. Before he did so the dryer was used by another boy who was injured by the acid. Here the force was considered sufficiently immediate and direct. This case has since been overruled on another point but it remains good law in respect of 'directness'.
Reynolds v Clarke 
'If a man throws a log into the highway and in that act it hits me, I may maintain trespass because it is an immediate wrong; but if, as it lies there, I tumble over it and receive an injury, I must bring an action upon the case because it is only prejudicial in consequence.'
old forms of action a C had to choose between suing in trespass (direct) or in case (indirect) and little attention was paid to whether the T was based on fault or on strict liability.
Letang v Cooper 
Lord Diplock was of the view that an action for direct, N interference could be brought either in trespass or in negligence. Whatever label was attached to it, the cause of action was identical - 'D Nly and directly injured me'. He did however agree with Lords Denning and Danckwerts that, where the action was for intentional, direct interference it was actionable per se. When the interference was direct and unintentional then, if it were an action in negligence, it required proof of damage but, equally, even if it were called 'trespass' it would still require proof of negligence and damage.
Letang v Cooper
Nowadays, if a man carelessly throws a piece of wood from a house into a roadway, then whether it hits the plaintiff or he tumbles over it the next moment, the action would not be trespass or case but simply negligence.'
Stubbings v Webb 
HL held that where s 11 of the Limitation Act 1980 referred to 'negligence, nuisance or breach of duty' this did not include trespass to the person, reinforcing the importance of a distinction between trespass and negligence.
Therefore the man who throws the log and deliberately hits the C is guilty of trespass whether the C suffers injury or not; whereas the man who carelessly throws it without intending to hit the C but in circumstances where it is reasonably foreseeable that it would do so, and it does, would be guilty of negligence but only where the C suffers injury.
Negligence is not actionable per se.
a. Name three distinguishing features of an action in trespass and in case.
three main distinctions were that trespass: was actionable per se
required an act directed at the plaintiff
(C) whereas case was satisfied by an act or an omission required a direct injury whereas an indirect injury would satisfy the requirements for case.
per se: The C does not need to have suffered any loss or damage as a result of the T.
In the case of Letang v Cooper did the plaintiff (C) bring her action in trespass or negligence?
brought her action in trespass.
Trespass to the person
A person commits an assault if he intentionally causes another reasonably to apprehend the application of immediate unlawful force on his person. Letang v Cooper; Collins v Wilcock 
Collins v Wilcock 
Note that it is apprehension which is required and not fear. The C does not have to be 'afraid': it is enough that he reasonably apprehended the contact.
is irrelevant that the C is courageous and is not frightened by the threat or that he could easily defeat the D's attack.
'An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person ... any touching of another person, however slight, may amount to battery.'
"Consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact... it is more common nowadays to treat...everyday jostling...as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life."
Thomas v NUM (South Wales Area)
trade union pickets who made violent threats and gestures were held back by a police cordon and those who wanted to work went through the gates inside buses. It was held that words and gestures, however threatening, would not be an assault if they could not be put into immediate effect as a central feature of assault was that the threat apprehended must be of immediate force.
However, where the C has no reasonable belief that the D has the present ability to effect his purpose, there will be no assault.
Smith v Chief Superintendent of Woking Police Station 
assault to stand outside the plaintiff (C's) window and stare in, while she was dressed in nothing but a pink nightie, with intent to frighten her and causing her to apprehend contact.
Stephens v Myers (1830)
held that if a D attempted to land a blow on the C which was intercepted by a 3P this could still amount to an assault. Here, the D, whose ejection from a parish meeting had been moved and received, advanced to unseat the C (who was the chairman) but was intercepted by the churchwarden. The D was found to have committed an assault. Lord Tindal CJ said:
'...though he was not near enough at the time to have struck him, yet if he was advancing with the intent, I think it amounts to an assault in law.'
Tubervell v Savage
Where a C knows that any threat will not be carried out there can be no assault as there will have been no reasonable apprehension of contact.
Murray v Ministry of Defence 
C must apprehend actual contact and nothing less. Taking a photograph of a person, for example, is not an assault.
(R v St. George (1840)
Pointing a loaded gun at a person would amount to an assault and the law is probably the same if the gun is unloaded unless the person at whom the gun is pointed knows it is unloaded.
C's state of mind is relevant to whether an assault has been committed so to point a (loaded or unloaded) gun at someone when they are asleep or to shake your fist at them from behind their back will not amount to assault no matter what your intention.
Innes v Wylie (1844)
more than a mere omission is required for an assault and it was stated in Innes v Wylie (1844) 1 C & K 257 that it would not be an assault where the D does no more than stand passively preventing the C from entering a room. However note the recent criminal case of Santana Bermudez 
Turberville v Savage (1669)
plaintiff (C) and the D were having an argument. The D placed his hand upon his sword and said: 'If it were not assize time I would not take such language from you'. It was held that the words negatived what would otherwise have been an assault.
R v Meade (1823)
it was said that no words or singing could be equivalent to an assault.
R v Wilson 
D shouted 'get out the knives' a physical fight developed and the D was charged under s.47 OAPA 1861. Lord Goddard stated that the words would by themselves amount to an assault. The case was actually decided on the physical aspects which demonstrated a battery was present and thus the comments relating to words were merely obiter dicta.
R v Ireland and Burstow 
words alone (and in some circumstances silence) can constitute an assault where the victim apprehends the possibility of imminent force. Lord Steyn rejected the proposition that an assault could never be committed by words alone and said that silence might also constitute an assault, but whether it did so or not was a question of fact.
'The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing apprehension of immediate personal violence...Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood...As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstances and, in particular, on the impact of the caller's potentially menacing...on the victim.' (at p.162)
i. Jane crept up behind Bill intending to hit him.
i Provided Bill was not aware that Jane was creeping up behind him intending to hit him there would be no assault.
ii. Bill telephoned Jane and just breathed heavily down the phone without saying anything.
ii. If Jane had apprehended the application of force and Bill had intended that she should then he could be guilty of assault. In Ireland and Burstow the HL ruled that words and perhaps even silence could amount to an assault.
iii. Jane was very angry with Bill and threatened to hit him. Bill, who was much taller and bigger than Jane, was not frightened by this.
iii. There would be an assault if Bill apprehended the application of even the slightest force. It is immaterial that he was not frightened.
iv. Jane was driving her car on the motorway and overtook Bill. This made Bill angry so he drove alongside Jane's car and made threatening gestures.
iv. There must be a reasonable apprehension of force: Thomas v National Union of Mineworkers. As to whether any apprehension was reasonable would depend on the facts. If Jane is safe in her car then words and gestures no matter how threatening cannot amount to assault if they cannot be put into effect.
Cole v Turner 
The lightest angry touch constitutes battery. A gentle touch made in close quarters with no ill intention is not a battery. A forceful or reckless touch, in close quarters is a battery.
Callis v Gunn 
held that wrongly taking a person's fingerprints could be a battery.
Pursell v Horn 
Throwing water at the C - although not at clothes she is wearing - is a battery.
Haystead v Chief Constable of Derbyshire 
D punched A who was holding a child in her arms. The child fell hitting its head on the floor. The D was guilty of a battery in respect of the child.
Striking A and causing injury to B can amount to a battery to B
battery by omission?
Fagan v MPC 
DPP v Santna Bermudez 
Wilson v Pringle 
Re F 
Poland v John Parr and Sons 
Fagan v MPC 
D accidentally drove his car on to a policeman's foot but, despite repeated requests, refused to remove it. It was held that there was an assault but not merely by omission. The D's conduct, from accidentally driving on to the policeman's foot to refusing to move, was a continuing act. He was still 'acting' at the time he formed the necessary intention for battery, i.e. when he refused to remove the car.
so not really an omission, this is a stretch
DPP v Santna Bermudez 
drug addict about to be searched by a policewoman falsely told her that there were no syringes in his pocket, the Divisional Court of the Queen's Bench held that, the policewoman having been pricked by one of the syringes, the D was guilty of battery. This is, however, a criminal case and must for the law of T - at least for the moment - be treated as guidance only.
In order to be guilty of battery, the D's conduct must be voluntary and it must be proved on balance of probabilities that the D intended to bring about contact. It is thought that 'intention' in this context includes 'subjective recklessness', that is, the D was aware of a risk of contact
Wilson v Pringle 
suggested that touching must be 'hostile' to amount to a battery.
Re F 
doubted whether the term 'hostile' connoted anything more than contact beyond that which is ordinarily acceptable in everyday life, saying: 'A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness, without being characterised as hostile.'
Poland v John Parr and Sons 
If the contact is intentional and direct, a mistaken belief that it is lawful is irrelevant. In Poland v John Parr and Sons  1 KB 236 where an employee thought he saw a boy stealing sugar from his employer's cart and attacked the boy, there was a battery.
a. Sunita was at a crowded party and was enjoying herself tremendously. While dancing she trod on Kumar's toe, hit Susan hard on the back and knocked James over
Su nita was dancing at a crowded party. Although jostling in a crowd would be considered to be one of the vicissitudes of life (Wilson v Pringle) and not an actionable battery, whether these incidents were actionable would depend on Sunita's state of mind. There was a direct application of unlawful personal force to Kumar, Susan and James and if Sunita intended to inflict force in any of the situations then an action in battery would lie.
It has been suggested that subjective recklessness might be treated as an intent for this T. If that is the case and Sunita was aware of a risk that her conduct might result in a battery then her conduct might well transcend the bounds of lawfulness - although treading on Kumar's toe might be considered merely a vicissitude of a crowded party.
b. While getting on a crowded train John jabbed his umbrella in Fred's leg. He saw a vacant seat and noticed that Roger was about to sit down. He pushed Roger out of the way. Roger dropped the baby he was carrying.
As to whether John would be guilty of battery in respect of Fred would depend upon his state of mind. (See (a) above.) John would be guilty of battery when he pushed Roger out of the way to get the seat and would also be guilty of battery against the baby even though he did not actually strike the baby. See Haystead.
c. The train pulled up too quickly and caused Fred to stand on someone's foot. When he saw that it was John he refused to remove it
There would be no battery when the train pulling up caused Fred to stand on John's foot. However, when he refused to remove it he would be guilty of battery You would not need to consider the issue of liability for omissions here. See Fagan. This would be treated as a continuous act and therefore, provided Fred formed the intent to use force at any time during the course of conduct, he would be guilty of battery.
actionable per se.
intentional deprivation of the C's freedom of movement from a particular place for any time, however short unless expressly or impliedly authorised by the law. The C must prove that he or she was intentionally denied freedom of movement but where a D claims that the restraint was lawful the burden is on the D to justify this.
Murray v Ministry of Defence 
'...the law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage.'
Bird v Jones (1845)
Ds had partially fenced off a public footway on Hammersmith Bridge in London. Bird climbed over the fence to use the footway but was prevented from using it and told to climb back over the fence and cross the bridge outside the fence. It was held that this was not false imprisonment. The D had not imposed a complete restriction on Bird's freedom of movement.
'imprisonment' may be anywhere from which the C does not have a reasonable means of escape, such as a room in a house,
a coalmine (Herd v Weardale Coal Co.  3 KB 771), a bridge (Bird v Jones) and, possibly, even a public lavatory (Sayers v Harlow Urban District Council 
Sayers v Harlow Urban District Council
if there is an 'escape-route', it will still be false imprisonment if the escape-route is not a reasonable one.
(C) was locked in a lavatory the court felt that a potentially dangerous climb over the door, or through a window, was not a reasonably safe escape-route. There was no false imprisonment in this case because Here the D had not directly locked the plaintiff (C) in the lavatory. Therefore, the proper cause of action was negligence and not false imprisonment.
false imprisonment (like all other forms of trespass to the person) must be by way of an act and not an omission to release the C, but see again Santana Bermudez
Robinson v Balmain Ferry Co. Ltd 
C paid one penny to enter a wharf in order to catch a ferry but then realised that there was a 20-minute wait for the next ferry. There was a charge of one penny for leaving the wharf - stipulated on a notice above the turnstile - and the Ds refused to let him leave until he had paid the charge. The Privy Council held that there was no false imprisonment.
Herd v Weardale Steel, Coal and Coke Co. Ltd 
C, a miner, demanded (in breach of his contract of employment) to be taken to the surface before the end of the normal shift. His employers (the D) refused. The HL held: the D was not liable, partly because he (the C) had impliedly consented to remain until the shift ended.
R v Bournewood Community and Mental Health NHS T ex parte L 
HL ruled that a man who had been informally admitted to a psychiatric hospital without capable consent had not been unlawfully detained under the CL. A later European Court of Human Rights ruling, however, found that the man had been unlawfully deprived of his liberty in the meaning of Article 5 of the European Convention on Human Rights.
ECHR stated that the distinction between actual and potential restraint was not significant.
Claimant's awareness of imprisonment
Grainger v Hill (1838)
importance the law attaches to the liberty of the individual is illustrated by the fact that where the C is too ill to move, an action in false imprisonment will still lie. whether imprisoned or not did not make sustantial differnece to Grainger's life, but the C still one
Meering v Grahame-White Aviation (1919)
unnecessary that the C was aware of the false imprisonment.
'It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic...Of course the damages might be diminished and would be affected by the question whether he was conscious of it or not
Murray v Ministry of Defence 
Lord Griffiths expressed agreement with Lord Atkin's view commenting that: '...[I]t is not difficult to envisage cases in which harm may result from unlawful imprisonment even though the victim is unaware of it'. And later he said: 'The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage.'
R v Governor of Brockhill Prison ex parte Evans (No 2) 
HL held that a where a prisoner was detained for extra days because the term of imprisonment was wrongly calculated she was entitled to damages for false imprisonment even though the error in calculation was due to a judicial decision which changed the basis of the calculation and the governor of the prison was not at fault.
Quinland v Governor of Swaleside Prison 
distinguishes R v Governor of Brockhill Prison ex parte Evans (No 2) 
governors had not made any arithmetical or other errors. The warrant specified the incorrect, longer sentence and they were, therefore, not at liberty to release the C any earlier.
Why was there no false imprisonment in the case of Bird v Jones?
D had not imposed a complete restriction on Bird's freedom of movement.
Is it possible to falsely imprison a person where that person is not aware of it?
Meering and also Murray v Ministry of Defence although it is likely to have an impact on the amount of damages awarded.
Why is false imprisonment actionable per se?
False imprisonment is actionable per se because the mere fact of the imprisonment is an injury in itself in that it is a wrongful interference with a person's liberty.
Why was there no false imprisonment in Sayers v Harlow Urban District Council?
There was no false imprisonment in Sayers because the D had not directly locked her in the lavatory.
Intentionally causing nervous shock
actionable per se.
Wilkinson v Downton  rule
Wilkinson v Downton 
D told the plaintiff (C) that her H was lying in a pub with both legs broken. He was, in fact, uninjured. Mrs Wilkinson suffered nervous shock and was ill for some weeks
D had: '...wilfully done an act calculated to cause harm to the C - that is to infringe her legal right to personal safety, and in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action...'
confirmed by the CA in the later case of Janvier v Sweeney 
Janvier v Sweeney 
D who was a private detective falsely claimed to be a police officer and told the plaintiff (C) that unless she provided them with letters belonging to her employer they would inform the police that her fiancé (who was German) was a traitor. She suffered psychiatric injury as a result and recovered damages under the rule in Wilkinson v Downton.
Wainwright v Home Office  UKHL
mother and son were strip-searched in breach of prison rules the HL ruled that the infliction of humiliation and distress by conduct calculated to humiliate and distress was not, in itself, Tious at CL. Therefore, the C's alternative case based upon an extension of the rule in Wilkinson v Downton had not been established.
In order to establish this T, the House ruled, it would need to be proved that the D had actually acted in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not.
Does the rule in Wilkinson v Downton apply to the situation where a C has suffered deliberate humiliation at the hands of the D?
Does the rule in Wilkinson v Downton apply to the situation where a C has suffered deliberate humiliation at the hands of the D?
Where a person consents to what would otherwise be a trespass to the person, then no such T will be committed.
Its equivalent in negligence actions is the defence of voluntary assumption of risk - volenti no fit iniuria (no injury is done to one who consents).
When you hold your arm out so that the nurse or doctor can give you an injection you are impliedly consenting to that injection (although not to any other procedure as consent to one medical procedure does not, in itself, justify another). It is said that people impliedly consent to ordinary social contact, for example being jostled in a crowd - see Wilson v Pringle and Re: F
R v Williams 
any consent given will be vitiated where it has
been obtained by fraud or duress.
D was guilty of rape (and, therefore, battery) as he obtained the C's consent to sexual intercourse by falsely representing to her that it would improve her singing voice as it was a breathing exercise.
Appleton v Garrett 
dentist was found guilty of battery where he carried out extensive and unnecessary dental treatment in bad faith and for profit and was aware that the Cs would not have consented to the treatment had they known the truth.
Hegarty v Shine (1878)
D knew, but his W did not know, that he was suffering from gonorrhoea, he had connection with her, that the result was that the disease was communicated to her, and that, had she been aware of his condition, she would not have submitted to the intercourse.
D's conduct did not constitute an offence.
R v Dica 
D was diagnosed as being HIV positive. Knowing of this he had unprotected sexual intercourse with two women. With the first woman he insisted that the intercourse was without protection having told her he had had a vasectomy. With the second he had used protection initially but later in the relationship had unprotected sex. He claimed that both were aware of his condition and had consented to unprotected intercourse with full knowledge of the risk. The women disputed this. The trial judge refused to allow the issue of consent to be put before the jury on the grounds that Clarence had been undermined and was no longer good law and the decision in R v Brown & ors  1 AC 212 had deprived the women of the legal capacity to consent to GBH in sexual activity.
Court agreed that Clarence was no longer good law. Those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it will be liable under s.20. Moreover, to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease, again, it is no longer authoritative. If however, the victim does in fact consent to the risk, this will provide a defence under s.20. Although the two are inevitably linked, the ultimate question is not knowledge, but consent.
R v Tabassum 
told the complainants that he worked for Christies hospital and was compiling a database on breast cancer. He carried out physical examinations on their breasts and demonstrated how they should conduct examinations on themselves to detect signs of breast cancer. In each case the women had consented to the examination, however, the women only consented because they believed he was medically qualified.
D was found guilty of indecent assault where he had examined the breasts of women who had consented because they believed that it was for medical purposes. Therefore, the court held that although there was, in essence, consent to the nature of the act there was no consent in relation to its quality.
Gillick v West Norfolk Health Authority 
Consent will not be vitiated by the C's age provided the C understands the nature of the act.
Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, on the other hand that the judges would be encouraging under-age sex if they did not.
A doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health, even though he knew it would assist a man to have unlawful sexual intercourse. By a majority of three to two. A child under 16 who can fully understand the implications of the proposed treatment (a " . Gillick competent" . child) can give her own consent to medical treatment.
situations where legislation has provided that a child's apparent consent will never be valid for the purposes of the criminal law
Sexual Offences Act 2003 and the Tatooing of Minors Act 1969
T v T 
A person of full age may lack the capacity to consent.
parent of a 19-year-old woman was granted a declaration in relation to the termination of a pregnancy.
D was a pregnant, 19-year-old, severely mentally handicapped epileptic. Her mother undertook to have the pregnancy terminated and her daughter sterilized. Because doctors would not operate without the court's protection, the mother sought a declaration to permit the termination and sterilization without her daughter's consent. The Family Division of the High Court found no statutory provision allowing 3P consent to be given under these circumstances. Instead, given the urgency of the case, the lack of contraceptive alternatives, and the impossibility of the D's being able to consent, the court ruled that the residual parens patriae jurisdiction of the Crown gave the court suitable power to adjudicate. The court granted the declaration, reasoning that medical advisors should do what the urgency of the situation demanded.
Chester v Afshar 
starting point is that every individual of adult years and sound mind has a right to decide what may or may not be done with his or her body. Individuals have a right to make important medical decisions affecting their lives for themselves: they have the right to make decisions which doctors regard as ill advised
Chatterson v Gerson 
action in the T of battery is not available where a patient has consented in broad terms to a procedure but complains that her consent was based upon an inadequate disclosure of a risk or risks associated with that procedure.
action will lie in negligence
R v Brown 
D1-5 engaged in various homosexual sadomasochistic practises in private. They used genital Ture and inflicted injuries, willingly and enthusiastically participating in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. None requiring medical treatment.
courts will interfere, liability did occur, but not if it were a lawful act. Public policy, fear of proselytisation, corruption, cult of violence and potential for serious harm. Absence of consent is not an element of assault occasioning actual bodily harm or unlawful wounding. Consent is a defence to the infliction of bodily harm in the course of some lawful activity, but ought not to be extended to sadomasochistic encounters.
Lane v Holloway 
cf R v Brown
although primarily a case on self-defencethe view of the court was that the savage blow inflicted by the D on a drunken old man was such that consent could not apply.
Condon v Basi 
C suffered a broken leg during a tackle from the D during a football match. The question for the court was the standard of care expected of a football player.
So far as lawful sports are concerned, consent will operate to prevent a battery provided such contacts as occur are those which can reasonably be expected in the game. Where incidents occur outside the rules due to the carelessness of the players, an action in negligence may lie
standard of care varies according to the level of expertise the player has. The D was in breach of duty as the tackle was reckless even with regards the standard expected of a local league player. Whilst a participant can be taken to accept the risks of injury inherent to such sporting activities they do not accept the risk of injury which occurs outside the rules of the game.
standard is objective, but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match.
Blake v Galloway 
The boys started throwing pieces of bark chippings and twigs at each other. The C did not join in at first but then threw a piece of bark chipping at the D hitting him in the leg. The D picked it up and threw it back at the C. The piece of bark struck the C's eye resulting in serious injury. The C brought an action contending that the injury was caused by the battery and or negligence of the D. The D raised volenti non fit injuria.
In the context of 'horseplay' there is a breach of the DOC only where the D's conduct amounts to recklessness or a very high degree of carelessness. The D had consented to the risk of injury occurring within the conventions and understanding of the game.
complete defence provided the force used by the D was both necessary and reasonable in the circumstances
must be necessary to use force for this defence to lie. Where a D mistakenly believes defensive force to be necessary he will still have the defence provided the mistaken belief was reasonable under the circumstances. Bici . (This is different to the criminal law where the honesty of the D's belief is sufficient; it does not have to be reasonable.) A D can pre-empt an attack where he honestly and reasonably believes it is necessary to do so to ward off an attack: he does not have to wait to be attacked.
Lane v Holloway 
C, an old, drunk man, called the D's W a 'monkey-faced tart'. The D, who was much younger than the C, went out into the street. The C hit him ineffectually. The D then struck the C with such savagery that the blow required 19 stitches. The court held that this was not proportionate force.
force used must not be retaliatory.
provocation was no defence to trespass.
Cross v Kirby,
defensive force must be proportionate, the D will not be expected in the heat of the moment to weigh to a nicety the exact measure of defensive force to use
C was a hunt saboteur. He got into an altercation with the D, a land owner who allowed his land to be used by the hunt. The D had forcibly removed the C's girlfriend from the land. The C then attacked the D with a baseball bat. The D grabbed the bat and grappled to get it off the C. In the course of doing so he struck the C on the head and fractured his skull. In consequence the C suffered epileptic attacks. The C brought an action for damages for the injuries sustained. The D raised self-defence and ex turpi causa.
courts have been very reluctant to allow this defence to succeed. See Southwark London Borough Council v Williams  and Monsanto v Tilly  although it was accepted as a limited defence by Lord Goff in Re: F and Brooke LJ in A (C) . See also Leigh v Gladstone (1909) where it was accepted as a defence to the battery (by way of force-feeding) a suffragette on hunger strike.
Southwark London Borough Council v Williams 
A homeless family squatted in an empty Council house, and resisted the Council's efforts to evict them.
If hunger were allowed as an excuse for stealing, or homelessness as a defence to trespass, it would open a door through which all kinds of lawlessness and disorder would pass; each would say his need was greater than the next man's. Council's action succeeded
Monsanto v Tilly 
defence of justification by necessity to trespass to land and to the damage to crops on that land is very closely circumscribed. It was available only in circumstances of imminent and serious danger to life or property. Here damage to the genetically modified crops, part of a field trial by the plaintiffs, was for the purpose of obtaining publicity for the Ds genuinely and sincerely held views, but not in circumstances which might make the defence available.
The operation to separate the twins took place on the 7th November 2000. As expected Jodie survived the operation, but Mary died.
Leigh v Gladstone (1909)
not assault to force-feed a prisoner (a sufraget) against her will if it was to save her from injury.
accepted as a defence to the battery (by way of force-feeding) a suffragette on hunger strike.
Lane v Holloway (above) it was stated that provocation was no defence to trespass.
Barnes v Nayer, The Times 19 December 1986 and contrast Murphy v Culhane
Barnes v Nayer
Dwas convicted of the manslaughter of the plaintiff's W. A civil action for trespass to the person followed. The D raised contributory negligence as a defence (among others), on the ground that he had been provoked. The CA considered that the D's response was out of all proportion to the alleged provocation, but on appropriate facts contributory negligence could be relied on as a defence to battery
Murphy v Culhane
Murphy and some other men went to beat up the D. In the fight, the D struck Murphy with a plank and killed him. The plaintiff (Murphy's widow) brought an action against the D under the Fatal Accidents Act for damages for battery. The plaintiff applied for summary judgment. The application for summary judgment was dismissed in view of the D's plea of ex turpi causa, which Lord Denning held was applicable in such circumstances.
Suppose that a burglar breaks into a house and the householder, finding him there, picks up a gun and shoots him - using more force, may be, than is reasonably necessary. The householder may be guilty of manslaughter and liable to be brought before the criminal court. But I doubt very much whether the burglar's widow will have an action for damages. The householder might well have a defence either on the ground of ex turpi causa non oritur actio or volenti non fit injuria. So in the present case it is open to the D to raise both those defences. Such defences would go to the whole claim.